공유특허의 분할청구에 관한 비교법적 고찰 - 대법원 2013다41578 판결을 중심으로 -

Recently the Supreme Court in Korea made an important decision on the nature of co-ownership of patents which has been disputed not only in academic circles but also in practical level in the patent area. This case decided on whether the object of co-ownership of patents is regarded either as partnership-ownership or co-ownership. In actual, the Supreme Court in Korea has ever interpreted the nature of co-ownership of patents as partnership-ownership as well as co-ownership. The above-mentioned case has obviously judged that the nature of co-ownership of patents is regarded as co-ownership, and therefore, now it is possible for a co-owner to demand a partition of a object jointly owned. As the object jointly owned is distributed, a partition method to be currently allowed is price partition or price compensation partition. However, the Supreme Court did not rule regarding the partition method, which is left unsettled. It will bring about a serious conflict of interests between a co-owner who does not want to use the patented invention any more and other co-owners who continuously want to use it. In my opinion, the other co-owners who do not want the object of co-ownership of patents to be divided by partition should, at least, have an opportunity to preferentially purchase the very share of a co-owner who has filed an application for partition with a court. Such a right is ruled in the French Code of Intellectual Property. De lege ferenda we should give careful consideration to introduce such a right of preempt into the Korea Patent Act.